Opinion
Case No. 03-4065-JAR.
June 4, 2004
MEMORANDUM ORDER
Plaintiff Terry D. Sills brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of Defendant Commissioner of Social Security's denial of his application for a period of disability and disability insurance benefits under Title II of the Social Security Act. According to plaintiff, defendant failed to properly assess plaintiff's credibility, failed to accord adequate weight to the opinion of plaintiff's treating physician, and failed to establish that plaintiff's mental impairment was equivalent to an impairment listed in Appendix 1, Subpart P of 20 C.F.R. Part 404 (listing of impairments). As explained in more detail below, the Court rejects each of plaintiff's arguments and affirms defendant's decision.
I. Procedural Background
On November 8, 2000, plaintiff filed his application for a period of disability and disability insurance benefits claiming disability since August 1, 1993, due to back problems, diabetes, and post traumatic stress disorder (PTSD). Plaintiff is insured for disability benefits through December 31, 1996, so he must establish disability on or prior to that date in order to be entitled to Title II benefits. Plaintiff's application was denied both initially and upon reconsideration. At plaintiff's request, an administrative law judge (ALJ) held a hearing on October 9, 2002, at which both plaintiff and his counsel were present. On November 27, 2002, the ALJ rendered a decision denying all benefits, on the basis that plaintiff was not under a "disability" as defined by the Social Security Act. After the ALJ's unfavorable decision, plaintiff requested review by the Appeals Council; his request for review was denied on February 21, 2003. Thus, the ALJ's decision is the final decision of defendant.
II. Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant's decision is supported by substantial evidence in the record as a whole and whether defendant applied the correct legal standards. The Tenth Circuit has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In the course of its review, the court may not reweigh the evidence or substitute its judgment for that of defendant.
See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)).
Id. (quoting Castellano, 26 F.3d at 1028).
Id.
III. Relevant Framework for Analyzing Claim of Disability and the ALJ's Findings
"Disability" is defined in the Social Security Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." The Social Security Act further provides that an individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ."
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (quoting 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A) (1982)).
Id. (quoting 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B) (1982 Supp. III 1985)).
The Social Security Administration has established a five-step sequential evaluation process for determining whether a claimant is disabled, and the ALJ in this case followed the five-step process. If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary. Step one determines whether the claimant is presently engaged in substantial gainful activity. If he is, disability benefits are denied. If he is not, the decision maker must proceed to the second step. Here, the ALJ determined that plaintiff was not engaged in substantial gainful activity and, thus, properly proceeded to the second step.
See id. (citing 20 C.F.R. § 404.1520, 416.920 (1986)).
Id.
Id.
Id.
Id.
The second step of the evaluation process involves a determination of whether "the claimant has a medically severe impairment or combination of impairments." This determination is governed by certain "severity regulations," is based on medical factors alone, and consequently, does not include consideration of such vocational factors as age, education, and work experience. Pursuant to the severity regulations, the claimant must make a threshold showing that his medically determinable impairment or combination of impairments significantly limits his ability to do basic work activities. If the claimant is unable to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. If, on the other hand, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. The ALJ in this case concluded that plaintiff satisfied the severity requirement based on the following impairments: a history of L4-5 and L5-S1 laminectomies, degenerative changes of the cervical spine, and insulin dependent diabetes; however, the ALJ found that plaintiff's mental impairments did not meet the severity requirement. Thus, the ALJ proceeded to step three.
Id. (quoting Bowen v. Yuckert, 107 S.Ct. 2287, 2291 (1987)).
Id. (citing 20 C.F.R. § 404.1520(c), 416.920(c) (1986)).
Id. at 750-51 (citing 20 C.F.R. § 404.1521(b), 416.921(b) (1986)).
Id. at 751.
Id.
In step three, the ALJ "determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits. If not, the evaluation proceeds to the fourth step, where the claimant must show that the "impairment prevents [the claimant] from performing work he has performed in the past." If the claimant is able to perform his previous work, he is not disabled. With respect to the third step of the process in this case, the ALJ determined that plaintiff's impairments were not listed or medically equivalent to those listed in the relevant regulations. At the fourth step, the ALJ concluded that plaintiff was unable to perform past relevant work.
Id. (citing 20 C.F.R. § 404.1520(d), 416.920(d) (1986); Bowen v. Yuckert, 107 S.Ct. at 2291).
Id.
Id. (citing 20 C.F.R. § 404.1520(e), 416.920(e) (1986); Bowen v. Yuckert, 107 S.Ct. at 2291).
Id.
Thus, the ALJ proceeded to the fifth and final step of the sequential evaluation process — determining whether the claimant has the residual functional capacity (RFC) "to perform other work in the national economy in view of his age, education, and work experience." At that point, the ALJ properly shifted the burden of proof to defendant to establish that plaintiff retains the capacity "to perform an alternative work activity and that this specific type of job exists in the national economy." At this step, the ALJ concluded that plaintiff was not disabled, a conclusion that rested on a finding that plaintiff, despite possessing certain non-exertional limitations, nonetheless could perform a significant number of jobs in the state and national economies, including light work as a cleaner, packager, and cashier.
See id. (quoting Bowen v. Yuckert, 107 S.Ct. at 2291).
See id. (citations omitted); accord White, 271 F.3d at 1258 (at fifth step, burden of proof shifts to Commissioner to show that claimant retains the functional capacity to do specific jobs).
IV. Analysis of Plaintiff's Specific Arguments
Plaintiff contends that the ALJ erred: in finding plaintiff's testimony not credible; in failing to accord adequate weight to the opinion of plaintiff's treating physician; and in erroneously finding that plaintiff's mental impairment was not equivalent to one in the listing of impairments. The Court addresses each of these arguments in turn.
A. Assessment of Plaintiff's Credibility
Most of plaintiff's disagreement with the ALJ's decision concerns the ALJ's assessment of plaintiff's credibility and his determination that plaintiff was not fully credible. When assessing credibility, the ALJ must consider the three prong test set out in Luna v. Bowen. The ALJ properly determined the first two prongs: plaintiff has an impairment, and there is a loose nexus between the alleged symptoms and the impairment. The third prong of the Luna test asks whether the symptoms are in fact disabling, considering all the evidence presented, including medical data, objective indications of the degree of symptoms, and subjective accounts of severity of symptoms by the claimant. In addition to objective medical evidence, at this third step the ALJ is to consider:
834 F.2d 161 (10th Cir. 1987).
Id. at 164.
Id. at 163.
1. [t]he individual's daily activities; 2. [t]he location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. [f]actors that precipitate and aggravate the symptoms; 4. [t]he type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. [t]reatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. [a]ny measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. [a]ny other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *3.
The ALJ may also consider such factors as a claimant's persistent attempts to find relief and willingness to try any treatment prescribed, regular use of crutches or a cane, regular contact with a doctor, and subjective measures of credibility that are peculiarly within the judgment of the ALJ. Moreover, the ALJ must give specific reasons why he rejects a claimant's subjective complaints. Ultimately, credibility determinations "are peculiarly the province of the finder of fact," and should not be upset if supported by substantial evidence.
Luna, 834 F.2d at 165-66; Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001) (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)).
Id. (citing Kepler, 68 F.3d at 390-91).
A review of the ALJ's decision in this case reveals that he complied with Luna in assessing plaintiff's credibility. In that regard, the ALJ concluded that plaintiff's allegations concerning his symptoms and his functional limitations were "not credible because his subjective complaints of limitation prior to his date last insured are inconsistent and unsupported by the medical evidence and overall record." The ALJ based his assessment on several specific factors including: plaintiff's daily activities; the lack of medical treatment; plaintiff's inability to follow prescribed treatment; the effectiveness of plaintiff's medication and the lack of side effects from those medications; plaintiff's work activity after the alleged onset date; and lapses in medical treatment. Plaintiff has not shown how this assessment was in error.
The ALJ properly considered plaintiff's daily activities as one factor in his credibility analysis. The ALJ noted that plaintiff could drive, do most household chores except vacuuming, was able to do some yard work for 15 to 20 minutes at a time, participates in Masonic lodge meetings twice a month, and fishes occasionally. While the ALJ noted that plaintiff has to take rest breaks during his household chores and yard work, it appears that these activities are done without help and are done more than occasionally.
See Talbot v. Heckler, 814 F.2d 1456, 1462 (10th Cir. 1987).
As part of his analysis of plaintiff's daily activities, the ALJ noted that plaintiff did work as an air compressor mechanic out of his home between 1993 and 2002. Although this work did not appear to be substantial gainful activity, plaintiff worked about two days a week or 100 days out of the year. Plaintiff argues that his work history is evidence of his disability, his having had mental problems as far back as 1968. However it was proper, as part of his credibility analysis, for the ALJ to consider that plaintiff worked after his alleged onset date. When considered as part of plaintiff's credibility analysis, his activities are inconsistent with allegations of total disability.
Williams v. Chater, 923 F. Supp. 1373, 1379 (D. Kan. 1996) (citing 20 C.F.R. § 404.1571, 416.971).
Plaintiff's reported income indicates sporadic work history with many years of no income, which to the ALJ indicated plaintiff had little work motivation. Plaintiff reported no income for the years 1994-2001, despite having worked as an air compressor mechanic during that time. The ALJ noted that plaintiff may have failed to report income he received as an air compressor mechanic for those years; and the ALJ found that plaintiff's lack of reported income did not help his credibility. The list of factors for the ALJ to consider during his credibility analysis is neither exclusive nor exhaustive; and the Court finds that it was proper for the ALJ to consider, among other factors, that plaintiff claimed he worked part time, yet he had no reported earnings from that work.
Luna, 834 F.2d at 166.
The ALJ noted that plaintiff did not require the use of crutches or a cane, despite alleged problems with his legs and feet. Plaintiff references a medical record from 1985, before plaintiff's back surgery, that shows he had used a back brace and lumbar corset. This evidence does not lend support to plaintiff's credibility concerning his circumstances at and after the onset of disability. And although plaintiff argues that the efficacy of his medication should not negatively affect the determination of his credibility, it is one of the factors the ALJ should use in deciding whether plaintiff is credible.
See Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *3.
The ALJ also properly considered testimony from plaintiff's son regarding plaintiff's impairments. Comments by third parties can be used as part of a credibility determination. Upon consideration of the son's testimony, the ALJ found that the son's testimony was largely based on plaintiff's subjective complaints and inconsistent with the medical evidence. The ALJ appropriately discounted the credibility of the son's testimony given its basis.
Id. at *2.
The ALJ also noted that plaintiff had not received treatment for some of the problems he claimed to have had during his insured time period. Plaintiff argues that this is an improper reliance by the ALJ on a lack of evidence. The ALJ cannot use a lack of evidence against plaintiff during certain steps of the evaluation process, for instance when the defendant has the burden of proving plaintiff can perform other work in the national economy. However, as used in this case, the fact that plaintiff did not receive treatment for his alleged impairments is not a lack of evidence, but rather it is evidence relevant to the ALJ's credibility determination. Frequency of medial contacts is a factor for the ALJ to consider when determining plaintiff's credibility. Plaintiff did not receive treatment for his back between 1993 and 1996, and he did not receive any mental health treatment until August 1997, eight months after his insured status ran. It was proper for the ALJ to rely on this as evidence of frequency of medical contacts.
Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991).
Plaintiff further argues that in order to rely on a lack of treatment, the ALJ should have complied with the Tenth Circuit's four part test in Frey v. Bowen for determining when a plaintiff can be found not disabled for failing to follow a prescribed treatment. This test requires, among other things, for the ALJ to determine whether the treatment at issue would restore plaintiff's ability to work. The test is used both in denying benefits for plaintiff's failure to follow prescribed treatment and for considering plaintiff's failure to follow prescribed treatment in evaluating plaintiff's credibility.
816 F.2d 508, 517 (10th Cir. 1987).
Id.
See Goodwin v. Barnhart, 195 F. Supp.2d 1293, 1295 (D. Kan. 2002) (citing Thompson, 987 F.2d at 1490; Ragland v. Shalala, 992 F.2d 1056, 1059-60 (10th Cir. 1993)).
But the Tenth Circuit has held that the Frey test is not required in a situation such as this, when the treatment has not been prescribed and the ALJ is simply considering "what attempts plaintiff made to relieve his pain . . . in an effort to evaluate the veracity of plaintiff's contention that his pain was so severe as to be disabling." Here the ALJ was not concerned with plaintiff's failure to follow prescribed treatment, but with the fact that plaintiff's condition was not as severe as he claimed because he did not receive treatment during his alleged disability period. Therefore the ALJ did not err in considering this particular factor.
Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (citing Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991); Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987)) (see also Noble v. Callahan, 978 F. Supp. 980, 986 (D. Kan. 1997); Bates v. Barnhart, 222 F. Supp.2d 1252, 1261 (D. Kan. 2002)).
One of the ALJ's reasons for finding plaintiff's allegations of disabling diabetes not fully credible was that plaintiff occasionally did not comply with his diabetes medication or the diet prescribed to control his diabetes. Because this statement concerns plaintiff's failure to follow his prescribed diabetes regimen, the ALJ should have used the four factor Frey test. However, he did not rely on plaintiff's failure to follow prescribed treatment alone. The ALJ had sufficient evidence otherwise for his credibility determination, finding:
The record indicates that the claimant has a history of insulin dependent diabetes mellitus. However, the medical evidence does not indicate any evidence of end organ damage or retinopathy. Moreover, the record does not indicate that the claimant has been hospitalized for any problem related to his diabetes.
In short, the ALJ considered the entire record, set forth the specific evidence he relied upon, applied the correct legal standards in evaluating plaintiff's testimony, and based his determination on substantial evidence in the record as required. Because credibility determinations are ultimately left to the ALJ when supported by substantial evidence, the Court finds that the ALJ's decision regarding plaintiff's credibility is not erroneous.
B. Treating Physician's Opinion
In his decision, the ALJ did not give controlling weight to Dr. Thakur's opinion. Dr. Thakur was plaintiff's treating physician during his mental treatment at the VA hospital. From the record it appears plaintiff first saw Dr. Thakur on January 1, 1999, although Dr. Thakur signed a record noting plaintiff attended group therapy on December 2, 1997. There are five opinion letters in the record from Dr. Thakur dated between January 6, 1999, and October 17, 2002. In each of the letters, Dr. Thakur states that in his opinion, plaintiff is permanently unemployable. In the October 17, 2002, letter, Dr. Thakur states that in his opinion plaintiff's PTSD existed at a level causing dysfunction in occupational and social settings for "at least a few years prior to August 1997." Dr. Thakur also mentioned the opinion of Dr. Smith, who initially saw plaintiff when he first went to the mental clinic and indicated that he suspected plaintiff had "a post traumatic stress disorder that has been unaddressed since 1968."
According to the Tenth Circuit, a treating source's opinion is not dispositive on the ultimate issue of disability, but the ALJ must give "controlling weight" to the opinion of a treating source, provided that the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques." If the opinion is well supported, then the ALJ must confirm that it is consistent with other substantial evidence in the record. If these requirements are not present, the opinion is not entitled to controlling weight. If, after this determination, the ALJ decides the treating source's opinion is not entitled to controlling weight, the opinion is still entitled to deference and must be weighed using factors such as: the length of the treatment relationship, the frequency of examination, nature and extent of treatment provided, the extent to which the opinion is supported by objective medical evidence, the opinion's consistency with the record as a whole, and other factors brought to the attention of the ALJ that tend to support or contradict the opinion. In short, the ALJ cannot disregard a treating source's opinion that a claimant is disabled without giving legitimate and specific reasons for doing so. When rejecting a treating physician's opinion outright, the ALJ cannot make speculative inferences and must rely on contradictory medical evidence, not his own credibility judgment, speculation, or lay opinion.
Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (citing 20 C.F.R. § 404.1527(e)(2), 416.927(d)(2)).
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *2)).
Id.
Id.
Robinson v. Barnhart, No. 03-2170, 2004 WL 729273, at *3 (10th Cir. April 6, 2004) (quoting Watkins, 350 F.3d at 1300-01; Soc. Sec. Rul. 96-2p)).
Id.
Id. (quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002).
The ALJ determined that there was no medical evidence supporting the treating physicians' opinions that it was probable plaintiff's symptoms of PTSD started a few years before he went for treatment in 1997. He also determined that the "opinions of the treating sources are speculative and are not substantiated by evidence of severe mental dysfunction prior to December 31, 1996," and that the opinions were "largely based on allegations that have been recently made in an obvious effort to enhance the prospects of a favorable outcome in this case." The Court finds that these are specific and legitimate reasons for discounting the physicians' opinions because the opinions were not consistent with plaintiff's level of functioning prior to December 31, 1996, as set forth in the ALJ's decision, and the opinions were not well supported by clinical evidence showing the impairment began before December 31, 1996. In fact, on August 14, 1997, when plaintiff first received psychiatric treatment, he stated that he only had a marked decline in his mental abilities, including the ability to work, over the past six to eight months.
Plaintiff further argues that Dr. Thakur's opinion should be used as expert testimony required when the disability onset date is in question. However, the disability onset date is not in question in this case because, as discussed in more detail below, the ALJ found that plaintiff's mental impairment was not severe at step two prior to December 31, 1996, and he had sufficient evidence for this finding.
See Soc. Sec. Rul. 83-20, 1983 WL 31249; Ott v. Chater, 899 F. Supp. 550 (D. Kan. 1995).
C. The Listing of Impairments
Plaintiff's final argument is that the ALJ erred by not finding his mental impairments equivalent to one in the listing of impairments. According to plaintiff, the ALJ should have considered plaintiff's mental impairment and documented the procedure as required in 20 C.F.R. § 404.1520a. The ALJ found that plaintiff's mental impairment was not severe at step two of the sequential evaluation process, and therefore that impairment did not have to be assessed at step three, the step at which the ALJ determines whether the impairments meet the listing of impairments. At step two, the ALJ must rate plaintiff's degree of limitation as set out in 20 C.F.R. § 404.1520a(d)(1), and if he rates the degree of plaintiff's limitation in the first three functional areas required to be analyzed as "none" or "mild" and rates the fourth area as "none," he will generally conclude that plaintiff's impairment is not severe. Using these rating areas, the ALJ found that plaintiff had no restriction in daily living activities; mild difficulties in maintaining social functioning; no difficulties in maintaining concentration, persistence or pace; and no repeated episodes of decompensation, each of extended duration prior to his date last insured. Therefore, the ALJ stated substantial evidence for this finding, and his decision that plaintiff's mental impairments were not severe before December 31, 1996 is valid.
In sum, after carefully reviewing the record in this case, and having considered all of plaintiff's arguments in light of the record, the Court concludes that substantial evidence supports defendant's decision to deny plaintiff's application for disability benefits and that no deviation from established legal standards occurred.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion for judgment is denied and defendant's decision denying plaintiff disability benefits is affirmed.